IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

United States of America, :

 

Plaintiff, :

 

v. : Case No. 2:11-mj-28 

 

Krystopher Legg, : Magistrate Judge Kemp

Defendant. :

 

 ORDER

The defendant, Krystopher Legg, accompanied by counsel,

appeared for a detention hearing on January 14, 2011. After the

hearing, the Court took the matter of detention under advisement. 

The Court has now decided that the defendant should be detained

pending further proceedings, and this order explains why.

On January 12, 2011, a grand jury sitting in the Middle

District of Florida returned an indictment charging Mr. Legg with

one count of conspiring to possess and distribute oxycodone, a

controlled substance, and one count of aiding and abetting the

distribution of oxycodone resulting in the death of another

person. This indictment carries with it a presumption that the

defendant should be detained without bond, explained as follows.

Legal Standard Applicable. The United States' request

for detention is based primarily upon the presumption that

arises under 18 U.S.C. §3142(e) for persons charged with serious

drug offenses, certain firearms offenses, and certain offenses

involving minor victims. That statute states, in pertinent part,

that:

 Subject to rebuttal by the person, it

 shall be presumed that no condition or

 combination of conditions will reasonably

 assure the appearance of the person

 as required and the safety of the

 community if the judicial officer

 finds that there is probable cause to

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 believe that the person committed an

 offense for which a maximum term of

 imprisonment of ten years or more is

 prescribed in the Controlled Substances

 Act (2l U.S.C. 801 et seq)...[or] an 

offense under section 924(c)...of this

title... or an offense involving a minor 

 victim [under selected statutes].”

Under 18 U.S.C. §3142(f), if detention is based upon facts

supporting a finding that no condition or combination of

conditions will reasonably assure the safety of any other person

and the community, such facts must be proved by clear and

convincing evidence. However, if detention is based upon a

finding that no condition or combination of conditions will

reasonably assure the appearance of the person as required, proof

by a preponderance of the evidence is sufficient.

 The proper effect to be given to this rebuttable

presumption is discussed in United States v. Jessup, 757

F.2d 378 (1st Cir. 1985). There, the Court indicated that

the presumption shifts the burden of producing evidence to

the defendants, and also remains in the case even after the

defendants have satisfied their production burden. Further, in a

narcotics case, because the history of the statute indicates that

Congress had in mind a specific set of circumstances relating to

drug offenses which led to the adoption of the rebuttable

presumption, it is appropriate for a Court addressing the

issue of detention to determine how closely the facts of the

case before the Court parallel those of the "Congressional

paradigm," or profile of those drug offenders who present the

most serious risk of flight or danger to the community. That

paradigm, in brief, indicates a Congressional awareness of

the lucrative nature of drug trafficking, and the fact that

many persons engaged in that occupation have substantial ties

outside the United States. Consequently, even if a high

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monetary bond is set for such persons, they are able, through

the use of proceeds derived from drug trafficking, to post

such bond, and are also able to flee the country because of

their contacts elsewhere.

 In order to attempt to rebut the presumption of detention

arising from charges under the Controlled Substances Act or other

applicable statutes, the defendant need not attempt to prove that

he or she did not commit the crime as charged. Rather, that

burden can be met by introducing evidence of other appropriate

factors as described in 18 U.S.C. §3142(g), including personal

history and characteristics relating to character, family ties,

employment, financial resources, length of residence in the

community, community ties, past conduct, history relating to drug

or alcohol abuse, criminal history, and record concerning

appearance in court proceedings. If any such evidence is

introduced, the presumption cannot be used by the Court as

conclusive evidence that the defendant poses an unacceptable risk

to the community or that conditions will not reasonably assure

the defendant’s appearance. United States v. Dominguez, 783 F.2d

702 (7th Cir. 1986). However, that presumption still remains in

the case to be given whatever weight the Court deems appropriate.

According to the Pretrial Services report, Mr. Legg is a

life-long resident of the Columbus, Ohio area. He had been

living with his fiancé and son for the past three months at an

address on Stevens Avenue, although it appears that he is behind

on the rent. His father lives in Columbus as does his brother,

and he could reside with either of them if released. He has been

employed, at least part-time, for a number of months and has held

other employment in the past. He has a history of marijuana use.

The defendant’s past criminal record is somewhat lengthy. 

He had a few juvenile arrests, with the disposition of those

cases listed as “unknown,” has a felony property offense

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conviction from 2003, and was convicted of several offenses in

2005 (in cases where his father and brother were co-defendants)

for which he served jail time. He has a felony drug conviction

from 2006 and some other minor drug-related convictions after

that. There is an active warrant for him at this time for

obstruction of official business. The Pretrial Services officer,

citing to all of these facts, recommended detention without bond.

Although the defendant’s criminal record is not the worst

the Court has ever seen, it does indicate a pattern of

criminality for most of defendant’s adult life, and of particular

concern are the drug-related convictions. Further, the

indictment represents probable cause to believe that the

defendant traveled to Florida and committed a serious drug

offense resulting in someone’s death. The mandatory penalty for

that offense is quite severe - twenty years to life in prison -

and the incentive not to appear for prosecution, especially in a

remote jurisdiction, is substantial. The defendant’s ties to the

Columbus community and his work history, while positive factors,

do not, in the Court’s view, outweigh both the negative factors

contained in the Pretrial Services report and the presumption of

detention which was created by the indictment. Other courts have

also taken the seriousness of the potential penalty into account

in this fashion in reaching the decision to detain a defendant

without bond. See, e.g., United States v. Eaddy, 853 F.Supp.

592, 593 (N.D.N.Y. 1994); see also United States v. Trammel, 922

F.Supp. 527, 532-33 (N. D. Okla. 1995).

For these reasons, the Court grants the United States’

motion to detain the defendant without bond. The defendant is

advised of his right to seek review of this order by a United

States District Judge pursuant to 18 U.S.C. §3145(b).

/s/ Terence P. Kemp 

United States Magistrate Judge

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